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April 21, 2006

Notable Booker rulings in the Fourth and Ninth Circuits

For some unexplained reason, I cannot access pdf circuit court rulings today from my office. So, I will have to rely for now others' accounts of some notable circuit Booker and sentencing rulings:

From the Fourth Circuit, US v. Davenport, No. 05-4304 (4th Cir., Apr. 21, 2006), has captured the attention of both Decision of the Day and the Fourth Circuit Blog because it appears to be a rare case of a circuit finding unreasonable an above-guideline sentence. Here's on brief account of the ruling: "The district court sentenced Donald Davenport to 120 months for picking a woman's pocket. On appeal, the Court vacates the sentence and remands, instructing the district court to follow the Guidelines in making an upward departure and to do a better job of explaining why a departure is warranted in the first place."

From the Ninth Circuit, two rulings of note were described to me this way via e-mail:

USA v. Plouffe is an order amending opinion and amended order of a case filed January 18, 2006, the entire order today is to be inserted into the opinion and concerns whether the court has jurisdiction to review a sentence in the guidelines range. The Ninth Circuit notes that under its old law it does not have jurisdiction to review a sentence within the guidelines, and while ordinarily , a panel cannot overrule an en banc decision, it can disregard it here because an intervening higher authority has issued an opinion that is clearly irreconcilable, i.e., Booker. Plouffee significantly notes that the reasonableness of a sentence is informed by all of the 3553(a) factors, and so a sentence within the guidelines may be unreasonable. The order ends with the instruction that no petitions for rehearing or for rehearing en banc may be filed.

USA v. Littlesun starts by stating: "We publish this opinion to resolve whether, after Crawford v. Washington, it is appropriate to use hearsay testimony during sentencing. We join each of our sister circuits who have considered the issue in concluding that it is." The court discusses the Supreme Court case of Williams v. New York (use of hearsay at sentencing does not violate due process) and rejects Littlesun's argument that it has been implicitly overruled by Crawford, holding that it is bound by the controlling Supreme Court precedent.

I hope to provide links to these cases whenever I make it to a pdf friendly computer.

Thanks to a trusty home computer, here is the Fourth Circuit's Davenportdecision and the Ninth Circuit's Plouffe andLittlesun decisions.